Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 783 (HP)

Kewal Singh v. State of Himachal Pradesh

2012-11-02

KULDIP SINGH

body2012
Judgment Kuldip Singh, J. This judgement shall dispose of Cr.MP(M) Nos. 1042, 1043, 1044, 1050, 1051 and 1052 of 2012, filed under section 438 Cr.P.C. by Kewal Singh, Saroj Kumari, Ram Pal, Som Nath and Kishori Lal, Nasib Singh and Darshan Kumar and Krishan Chand respectively for releasing them on bail in FIR No. 182 dated 31.10.2012 registered at Police Station, Amb, under sections 302, 147, 148, 149 and 341 IPC. 2. In Cr.MP(M) Nos. 1042, 1043 and 1044 of 2012 notices were earlier issued and the police officer from the concerned police station alongwith record and status report is present in the court. In the meantime, Cr.MP(M) Nos. 1050, 1051 and 1052 of 2012 were also filed, notices have been issued in the said petitions, which have been accepted by the learned Additional Advocate General. Cr.MP(M) Nos. 1050, 1051 and 1052 of 2012 are also taken up for disposal with Cr.MP(M) Nos. 1042, 1043 and 1044 of 2012 as the police file is also available in the court. The status report has been filed in Cr.MP(M) No. 1042 of 2012. Cr.MP(M) No. 1042 of 2012. 3. It has been stated that brother-in-law of the petitioner and his family was having some dispute with Kashmir Singh and his family. Kashmir Singh had obtained an interim order dated 18.10.2012 against the brother-in-law of the petitioner restraining him from raising the construction. In the interim order, the court has clarified that Ram Pal is free to use his land. The brother-in-law of the petitioner started raising construction. The other side made a complaint to the police station Amb. The police started harassing and humiliating the family members of the brother-in-law of the petitioner, even the petitioner was asked to report to the police station. 4. On 31.10.2012, the petitioner was not in his in-laws house, there was some exchange of hot words between the family members of the brother-in-law of the petitioner and Kashmir Singh. In little fight, Kashmir Singh fell down, he was taken to hospital. It has been alleged that an FIR has been registered and as per knowledge of petitioner, case under sections 307, 326, 304-A IPC has been registered at police station, Amb. 5. The petitioner is a government servant. He has left only six months of service for superannuation. The petitioner is innocent, he has been falsely implicated in the case. It has been alleged that an FIR has been registered and as per knowledge of petitioner, case under sections 307, 326, 304-A IPC has been registered at police station, Amb. 5. The petitioner is a government servant. He has left only six months of service for superannuation. The petitioner is innocent, he has been falsely implicated in the case. The petitioner is ready to join the investigation. On account of registration of above case, the petitioner is apprehending his arrest in the above case. The submission has been made for releasing the petitioner on bail. Cr.MP(M) No. 1043 of 2012. 6. The petitioner is the wife of Kewal Singh petitioner in Cr.MP(M) No. 1042 of 2012. It has been stated that brother of the petitioner and his family was having some land dispute with Kashmir Singh and his family members. The petitioner is also in service as per her affidavit filed in support of the bail application. The remaining averments in her bail application are more or less same as are averred in Cr.MP(M) No. 1042 of 2012. Cr.MP(M) No. 1044 of 2012. 7. It has been stated that petitioner and his family was having some land dispute with Kashmir Singh and his family. Kasmir Singh obtained an interim order from the court. On 31.10.2012, the petitioner was not in his house. There was hot exchange of words between the family members of the petitioner and Kashmir Singh. In little fight, Kashmir Singh fell down. The petitioner is a government servant. The remaining averments in the petition are more or less same as averred in Cr.MP(M) No. 1052 of 2012. Cr.MP(M) No. 1050 of 2012. 8. It has been stated that one Bansi Lal had filed a suit before learned Civil Judge (Junior Division), Court No. 2, Amb with respect to land comprised in khasra Nos. 414, 415 as per jamabandi for the year 2008-09. On 18.10.2012, the Civil Judge passed interim order, however, it was ordered that Ram Pal was free to use and enjoy his own land. Ram Pal alongwith his two sisters are owners in possession of khasra Nos. 416, 417. On khasra No. 416 Ram Pal is having his old abadi and Ram Pal was raising construction on land comprised in khasra No. 417. 9. Ram Pal alongwith his two sisters are owners in possession of khasra Nos. 416, 417. On khasra No. 416 Ram Pal is having his old abadi and Ram Pal was raising construction on land comprised in khasra No. 417. 9. It has been stated that complainant party forming unlawful assembly of about 25-30 persons came to the house of Ram Pal situate on khasra No. 416, broke the wall of the house of Ram Pal situate on khasra No. 416. They pelted stones and uttered filthy abuses. The objection was raised of their entering over khasra No. 416, in rush of people consisting of about 30 persons Kashmir Singh fell down, he was taken to hospital, where he expired. 10. Vipin Kumar has lodged FIR. Vipiin Kumar was not present in the house. He lodged the FIR on hear say. The petitioners are innocent. They have committed no offence. They have been implicated in the case on account of ill will, malice. The petitioners are brothers-in-law of Ram Pal. The petitioners are ready to join the investigation and furnish bail bonds as per the directions of the court. The submission has been made for releasing them on bail. Cr.MP(M) No. 1051 of 2012. 11. It has been stated that petitioner No. 1 is the brother-in-law of Ram Pal and petitioner No. 2 is son of petitioner No. 1. The remaining averments in this petition are more or less same as averred by the petitioners in Cr.MP(M) No. 1050 of 2012. Cr.MP(M) No. 1052 of 2012. 12. The petitioner is the brother-in-law of Ram Pal. The remaining averments in the petition are more or less same as averred by petitioners in Cr.MP(M) No. 1050 of 2012. 13. In the status report, it has been stated that on 31.10.2012, information was received at police station on telephone that some quarrel had taken place in village Aloh. The Medical Officer, CHC Amb also informed that injured had been brought to CHC Amb. ASI Rajinder Singh etc. reached the hospital, but according to doctor injured Kashmir Singh was not in a position to make the statement. On this, statement of Vijay Kumar, who was with Kashmir Singh was recorded under section 154 Cr.P.C. He has stated that his uncle Kashmir Singh had land dispute with Ram Lal and the matter was pending in the court. reached the hospital, but according to doctor injured Kashmir Singh was not in a position to make the statement. On this, statement of Vijay Kumar, who was with Kashmir Singh was recorded under section 154 Cr.P.C. He has stated that his uncle Kashmir Singh had land dispute with Ram Lal and the matter was pending in the court. On 31.10.2012, at about 6 p.m. on the disputed land Ram Lal made preparations for tying iron bars for the construction of house. Kashmir Singh raised objection. There were about 15- 20 persons, his uncle proceeded to stop the tractor, he sustained injury and became unconscious. On hearing cries, complainant and Shiv Kumar and other persons reached the spot, Kashmir Singh was taken to hospital, Kewal Singh without any cause in violation of law injured the uncle of the complainant. On this, the case was registered. 14. The case is under investigation. The doctor referred injured Kashmir Singh for treatment to Zonal Hospital, Una and Zonal Hospital, Una referred the injured for treatment to PGI Chandigarh, but injured died at Ropar on his way to Chandigarh. The post mortem on the dead body of the deceased was got conducted. The doctors on the post mortem report have opined that cause of death is sever head injury (compound fracture of skull and massive EDH) and is caused by blunt object. 15. It has been stated that it has come in investigation that injured Kashmir Singh and accused Ram Pal had some land dispute. Ram Pal was raising construction on the disputed land, Kashmir Singh had obtained interim order from the court. Ram Pal was raising construction despite interim order. Ram Pal wanted to put lintel with the aid of his relations. He arranged one trolley of sand. Kashmir Singh and his son Pawan Kumar and nephew Devinder Kumar had proceeded to stop the tractor but tractor driver despite the objections of Kashmir Singh unloaded the sand. Kashmir Singh had heated arguments with Kakku tractor driver. On hearing the heated arguments, Ram Pal and his five brothers-in-law Kewal Singh, Nasib Singh, Tilak Raj, Krishan Raj, Banti, Darshan and Saroj Kumari in conspiracy with each other reached the spot. They entered into an argument with Kashmir Singh, Pawan Kumar and Devinder Kumar. Kashmir Singh had heated arguments with Kakku tractor driver. On hearing the heated arguments, Ram Pal and his five brothers-in-law Kewal Singh, Nasib Singh, Tilak Raj, Krishan Raj, Banti, Darshan and Saroj Kumari in conspiracy with each other reached the spot. They entered into an argument with Kashmir Singh, Pawan Kumar and Devinder Kumar. Kewal Singh took an object like rod and gave blow on the head of Kashmir Singh, who fell down and became unconscious, he was taken to hospital but died. It has been stated that weapon of offence is to be recovered. Kashmir Singh deceased belonged to poor family. The accused are rich and well connected, they will influence the witnesses and hamper the investigation. The submission has been made for rejection of the bail applications. 16. Heard and perused the record. The learned Addl. Advocate General has stated that as of now the accused are namely Ram Pal, Kewal Singh, Saroj Kumari, Nasib Singh, Kishori Lal, Krishan Chand, Banti and Darshan. The learned counsel for the petitioners has stated that Tilak Raj and Kishori Lal is one and the same person, similarly Som Nath and Banti is also one and the same person. In other words, the petitioners according to prosecution are accused in the above FIR. 17. The learned counsel for the petitioners has submitted that petitioners are innocent, they have been falsely implicated in the case. Ram Pal was constructing the house on khasra No. 417, in respect of which there was no interim order. The civil court permitted Ram Pal to use his land. He has submitted that complainant is not an eye witness. The petitioners are ready to join the investigation and furnish bail bonds, they are residents of the places mentioned in the petitions. Some of the petitioners are government servants, one of them is about to superannuate in six months. The mere allegations in the FIR of commission of offence under section 302 IPC are not enough to reject the bail. There is no corroborative material to support the allegations made in the FIR. The bail is rule and jail is an exception. He has relied Vimal Kumar Bawa vs. State of H.P. 2002 (1) Shim.L.C. 59 and Gudikanti Narasimhulu and others vs. Public Prosecutor, High Court of Andhra Pradesh AIR 1978 SC 429 . 18. The learned Addl. There is no corroborative material to support the allegations made in the FIR. The bail is rule and jail is an exception. He has relied Vimal Kumar Bawa vs. State of H.P. 2002 (1) Shim.L.C. 59 and Gudikanti Narasimhulu and others vs. Public Prosecutor, High Court of Andhra Pradesh AIR 1978 SC 429 . 18. The learned Addl. Advocate General has submitted that incident took palace on 31.10.2012, the investigation is at an early stage. On the basis of eye witnesses, the involvement of the petitioners in the commission of the offence has been established. The petitioners are influential persons. The offence is serious, recoveries are to be made. The petitioners will hamper the investigation in case they are released on bail. The perusal of the petitions indicates that petitioners have not denied that some altercation took place on the spot. 19. In Cr.MP(M) Nos. 1050, 1051, 1052 of 2012, it has been stated that in rush of people consisting of more than 30 persons Kashmir Singh fell down and was taken to hospital where ultimately he died. The prosecution case is that at the relevant time Kashmir Singh, Pawan Kumar and Devinder were on the spot. Kakku brought sand in tractor trolley. Kashmir Singh, Pawan and Devinder proceeded to stop Kakku from unloading the sand, but Kakku despite their objections unloaded the sand. The hot words were exchanged between them. According to investigating agency, at that time the petitioners came there, Ravinder Kumar a cousin of Ram Pal and nephew of Kashmir Singh in his statement, under section 161 Cr.P.C. has stated that he was present on the spot and saw Kakku unloading the sand, but Kashmiri Lal, Pawan Kumar and Devinder objected the unloading of the same, in the meantime Ram Pal, Kishan Raj, Tilak Raj, Kewal Singh, Nasib Singh, Banti, Darshan and Saroj Kumari came there and they started quarrelling and had scuffle. Kewal Singh took an object like an iron road and hit on the head of Kashmiri Lal, who fell down and became unconscious. Kashmiri Lal was taken to hospital. 20. Pawan Kumar and Devinder Kumar in their statements under section 161 Cr.P.C. have corroborated the statement of Ravinder Kumar. The doctors in post mortem report have given the opinion that cause of death is the severe head injury, compound fracture of skull and massive (EDH) and caused by blunt object. Kashmiri Lal was taken to hospital. 20. Pawan Kumar and Devinder Kumar in their statements under section 161 Cr.P.C. have corroborated the statement of Ravinder Kumar. The doctors in post mortem report have given the opinion that cause of death is the severe head injury, compound fracture of skull and massive (EDH) and caused by blunt object. The case has been registered under sections 302, 149 IPC etc. Section 149 IPC provides, if an offence is committed by any member of an unlawful assembly in prosecution of common object of that assembly, or such as the member of that assembly knew to be likely to be committed in prosecution of that object, every person who, at that time of committing of that offence, is a member of same assembly is guilty of that offence. The prosecution case is that petitioners were the members of unlawful assembly having common object to eliminate the deceased Kashmir Singh. The investigation is at an early stage. The recoveries are to be made. The occurrence took place on the land which was subject matter of the civil suit or on some other land is a matter, which is part of the investigation. 21. Vimal Kumar Bawa (supra), was a case under section 439 Cr.P.C. and not under section 438 Cr.P.C. In that case FIR was registered on 7.2.2001 under Section 436 IPC and the bail was granted on 9.5.2001. In the present case, the FIR has been registered only two days back and investigation is in progress. 22. ‘Bail or jail’ principle considered in Gudikanti Narasimhulu (supra) is well known, but it depends upon the facts and circumstances of each case. In that case, the Supreme Court has held that another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the court to be freed for the time being. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorizing it is reasonable, even handed and geared to the goals of community good and State necessity spelt out in Article 19. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and society affected. 23. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and society affected. 23. In the facts and circumstances of the case and keeping in view the stage of investigation and seriousness of the case, the petitioners have failed to make out a case for indulgence of bail under section 438 Cr.P.C. In view of above, all the petitions being Cr.MP(M) Nos. 1042, 1043, 1044, 1050, 1051 and 1052 of 2012, filed under section 438 Cr.P.C. by Kewal Singh, Saroj Kumari, Ram Pal, Som Nath, Kishori Lal, Nasib Singh, Darshan Kumar and Krishan Chand respectively are dismissed. 24. Any observation made hereinabove shall not be construed as an expression of opinion over the merits of the case.